ORAL JUDGMENT
(Per : HONOURABLE MR. JUSTICE JAYANT PATEL)
1. As both the matters are inter-connected, they are being considered by this common judgement.
2. The relevant facts are that the original petitioner deceased Nagarbhai Dayabhai Patel, since was holding the agricultural land above the prescribed limit as per the provisions of the Gujarat Agricultural Land Ceiling Act (hereinafter referred to as ‘the Act’ for short), the case was registered under the Act before the Mamlatdar and ALT. At the conclusion of the said case, the Mamlatdar and ALT found that as the original petitioner was the adopted son, who was major at the relevant point of time, he would be entitled for two units and if two units were to be considered there was no surplus area of the agricultural land available and the holding was within the prescribed limit. Therefore, Mamlatdar and ALT declared that there is no surplus land vide order dated 24.12.1980 It appears that the Deputy Collector in exercise of the suo motu power under Section 37 of the Act, taken up the matter in revision and issued notice to the original petitioner being Revision Application No. 671/82. The Deputy Collector found that the adoption was not as per the requirement of the law namely; that the document was not registered as required under Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the ‘Adoption Act’ for the sake of convenience), and found that two units would not be available and only one unit would be available and, therefore, he declared that the land admeasuring 10 acres and 20 gunthas as surplus land to be acquired by the Government, however, on the aspects of choosing of portion of retainable land, the matter was remanded to the Mamlatdar. The original petitioner carried the matter in revision before the Gujarat Land Revenue Tribunal and the Tribunal, vide order dated 10th April, 1992 further found that there is no reference of performance of any religious ceremony at the time of adoption even in the adoption deed and the Tribunal ultimately dismissed the revision. The original petitioner preferred the review application before the Tribunal, which was registered as Review Application No. TEN.C.S.5/92 and vide order dated 24.7.1992, the question of adoption was not pressed. On behalf of the petitioner, the other contentions were raised on the aspects of status of the land as to whether it was perennially irrigated or not and the Tribunal thereafter rejected the review application.
3. Under these circumstances, the petitioner preferred petition before this Court being SCA No. 9807 of 1992. The learned Single Judge for the reasons recorded in the order dated 23.2.2001 dismissed the petition. Hence, the appeal before us being LPA No. 1514 of 2001.
4. It further appears that after the petition was dismissed by the learned Single Judge as per the above referred order, MCA No. 1463 of 2001 in SCA No. 7807 of 1992 was preferred by the so-called adopted son of the original petitioner namely; Shri Sureshbhai Nagarbhai Patel, contending, inter alia, that as the original petitioner had expired on 7.6.1995 i.e prior to the order passed in the main SCA dated 23.2.2001, the order be recalled and he may be permitted to be substituted in place of the original petitioner as legal representative and the matter be heard afresh. The said MCA vide order dated 31.8.2001 came to be dismissed by the learned Single Judge and hence, the appeal being LPA No. 1602 of 2001 before us.
5. We have heard Mr. Y.N Oza, learned Sr. Counsel appearing with Mr. Sunil K. Shah in both the appeals as well as Ms. Nair, learned AGP for the State Authorities, who are respondents herein.
6. The only contention raised by the learned Counsel before us is that if the deed of adoption or the adoption in question is accepted as it is, the original holder of the land would be entitled for two units and there will not be any surplus land. In furtherance to the submission, the learned Counsel contended that it was not open to the officers under the Act to go into the question of legality and validity of the adoption once it was declared by the authority that the adoption is made and there is an adopted son. The learned Counsel contended that the view has been taken by this Court in case of “L.R.s of Popat Khima Ramani v. Collector, Rajkot”, reported in 2003 (1) GLH, 30 that the Revenue Officer, while mutating the revenue entry cannot go into the question of legality and validity of the ‘will’, more particularly when there was already a declaration of Civil Court that the ‘will’ is legal and valid. He contended that in the present case a decree has been passed by the Civil Court on 18.10.2003, of course after the decision of the learned Single Judge that Sureshbhai Nagarbhai Patel is the duly adopted son as per the adoption deed dated 22.4.1968 He orally submitted that the petitioner has also filed an application for producing the additional evidence of the aforesaid judgement of the Civil Court and based on the same, the contention is that once the Civil Court has passed the order, the adoption deed would be rendered legal and valid and the authority could not take a different view. The another contention raised by the learned Counsel for the appellant is that there was delay in initiating the action by the Deputy Collector. The submission of the learned Counsel is that considering the question of delay accrued, initiation is not sufficient, but there should be a concluded order by decision and if that decision has taken a long time after initiation, even if the initiation is within the stipulated period, the order would be barred by delay and in the present case the order has been passed after eight years and hence, on the said aspect the order of the Deputy Collector would be bad in law and the Tribunal as well as the learned Single Judge has not properly considered the same and, therefore, this Court may consider.
7. Whereas, on behalf of the respondent authorities, the learned AGP contended that as such the LPA would not be maintainable, since the petitioner had invoked the jurisdiction of the learned Single Judge under Article 227 of the Constitution of India and the learned Single Judge in the impugned order has also specifically mentioned for exercise of power under Article 227 of the Constitution. She alternately contended that even on merits, there is no case with the petitioner inasmuch as the adoption was found to be illegal and, therefore, no right would flow to the person concerned based on such so-called adoption. It was submitted that the view taken by the learned Single Judge is legal and valid and does not call for interference.
8. In order to have ready reference, we may state that the learned Single Judge recorded the reasons thus:
6. I have heard the learned counsel for the parties and taken into consideration the documents forming part of the petition. So far as exercise of suo motu revisional powers by Deputy Collector is concerned, it is clear that the Agricultural Tribunal had passed order dated December 24, 1980 in Ceiling Case No. 13/77-Ambada holding that the petitioner was not holding any excess land under the Act. Thereupon, the Deputy Collector had called for papers of Ceiling Case No. 13/77-Ambada on March 1, 1988 and had exercised suo motu revisional powers. It is true that section 37 of the Act requires that suo motu powers can be exercised by the Collector before expiry of one year from the date of the order sought to be reviewed. However, the facts indicate that the Deputy Collector had exercised suo motu powers within one year from the date of order of the Agricultural Tribunal and, therefore, the impugned orders are not liable to be set aside on the ground that the Deputy Collector had exercised suo motu revisional powers after expiry of one year from the date of order of the Agricultural Tribunal. The first contention, therefore, has no substance and is hereby rejected. So far as adoption of Sureshkumar by the petitioner is concerned, the Gujarat Revenue Tribunal has given cogent and convincing reasons in Para-7 of its order dated April 10, 1992 for coming to the conclusion that adoption of Sureshkumar by the petitioner in the year 1968 is not proved and that the adoption was not legal and valid. As observed by the Tribunal, the petitioner could not produce best evidence before the Deputy Collector in suo motu revision proceedings and had tried to produce evidence after 1976, which was thoroughly irrelevant. When the Mamlatdar and A.L.T issued notice to the petitioner on September 12, 1980 calling upon him to produce birth certificate, school leaving certificate of his sons and daughters, the petitioner produced school leaving certificate No. 19/72-73 from the Principal of M.N Vidyalaya, which indicated the name of Sureshkumar as “Patel Sureshbhai Jivanbhai” with birth date as July 1, 1955. In view of this certificate, the Tribunal rightly concluded that if the petitioner had adopted Sureshkumar as his son in the year 1968, the certificate would not have mentioned the name of “Jivanbhai” as father of Sureshkumar. Moreover, in the deed which was produced by the petitioner, there was no mention about the necessary religious ceremonies of adoption having been gone through. On overall view of the matter, the Tribunal has concluded that adoption of Sureshkumar by the petitioner in the year 1968 is not proved. The question whether Sureshkumar was adopted by the petitioner in the year 1968 or not is essentially a question of fact and finding reached thereon by the Tribunal is not liable to be disturbed in a petition filed under Article 227 of the Constitution. Moreover, as observed by me earlier, the point regarding adoption of Sureshkumar was not pressed by the petitioner at the time of hearing of Review Application No. TEN.C.S.5/92. Thus, the petitioner is not entitled to any relief on the ground that Sureshkumar was is adopted son and was entitled to a separate unit under the Act. As far as the last point regarding validity of certificate issued by Canal Officer is concerned, it is to be noticed that the validity of certificate was never disputed by the petitioner before the Mamlatdar & A.L.T, Navsari in Ceiling Case No. 13/77-Ambada. From the said order, it does not become clear whether the certificate issued by Canal Officer was produced by the petitioner or by the Deputy Collector, who had remained present on behalf of the Government. In fact, the case of the petitioner in review application was that the lands were not getting irrigation water from January 24, 1971 to April 1, 1976 and there was no evidence about assured supply of water to the lands situate at village Ambada, but the validity of certificate was never questioned by the petitioner at any stage. The validity of the said certificate could not have been gone into without hearing the Canal Officer, who had issued the same at the relevant time. As the point regarding validity of the certificate was never questioned by the petitioner either before the Mamlatdar & A.L.T or before the Deputy Collector or before the Gujarat Revenue Tribunal in Revision Application No. TEN. B.S.145/88, I am of the view that the Tribunal did not commit any error in not entertaining the review application. Having regard to the facts of the case, the principles laid down by the learned Single Judge of this Court in AMRATLAL BHIKHABHAI PATEL (supra) cannot be made applicable to the facts of the present case and the petitioner is not entitled to any relief on the ground that the lands in question could not be treated as perennially irrigated lands. The net result of the above discussion is that I do not find any substance in the petition and the petition is liable to be dismissed.”
9. The aforesaid are the reasons recorded by the learned Single Judge on the question of adoption as well as on the question of delay. As observed by the learned Single Judge, the action of suo motu revision was within the prescribed limit of the statute and not after the expiry of the statutory period. It is true that the basis taken by the learned Single Judge is the initiation of the proceedings and not the date of conclusion of the proceedings. The contention of the learned Counsel for the petitioner on the aspects of delay cannot be accepted for two reasons; one is that the delay if it is to operate as a bar on the point of jurisdiction, it would always touch to the initiation of the proceedings and not the final order to be passed. The second is that in the present case the statute has expressly provided the period within which the revisional power could be exercised. It is by now well settled that when any statute prescribes for power by way of an appeal or by way of a revision, it is the initiation stage to be considered for the purpose of limitation and not the order, which may be passed ultimately at the conclusion of such proceedings. Therefore, the contention of the learned Counsel is devoid of merits and hence, cannot be accepted.
10. On the aspects of adoption, it appears that the learned Single Judge has taken into consideration the reasons recorded by the Tribunal. But in addition thereto, we may state that if the adoption deed is not registered or if the requisite religious ceremony is not said to have been performed as in the deed of adoption, the authority under the Act namely; the Mamlatdar and ALT as well as the Deputy Collector as well as the Revenue Tribunal were well within their power to examine the question as to whether such adoption will have any bearing on the entitlement of the second unit by the holder of the land or not. When the Act provides for the additional units for the major son, unless it is satisfactorily shown to the Mamlatdar and ALT or the Revisional Authority provided under the Act, one would not be entitled for the benefit of the second unit on the ground of major son. It was an admitted position that the original petitioner had no son and he had only one daughter. The son of the daughter is said to be taken in adoption by the so-called deed. The adoption requires certain mandatory procedure to be followed. If such conditions are not satisfied, the authority under the Act, which is processing the case of surplus land provided by the Act for the purpose of acquisition, would be well within their power to examine such question. Therefore, Mr. Oza is not right in contending that the Mamlatdar and ALT or the other authorities provided under the Act will have no jurisdiction to examine the question of legality and validity of the adoption.
11. The contention based on the so-called decree of the Civil Court is ill-founded inasmuch as the decree of the Civil Court is, even after the order passed by the learned Single Judge and, therefore, the consequential effect would be that when the case was conducted before the Mamlatdar and ALT as well as before the Deputy Collector and the Revenue Tribunal, there was no decree of the Civil Court. Further in the petition also there is no ground contended, nor such decree was in existence.
12. Under these circumstances, while exercising the power under Article 227 of the Constitution of India or the powers under LPA arising from the order of the learned Single Judge, we cannot consider the document, which was not at all there before the learned Single Judge. Further, it prima facie appears that with a view to cover up the infirmities in the alleged adoption, after the decision of the learned Single Judge, the suit is filed and the same is decreed, that too, upon the admission and concession. There is no examination by the Civil Court on the aspects, which has been considered by the Deputy Collector as well as the Revenue Tribunal and also by the learned Single Judge of this Court in the impugned order on the aspects as to whether the requisite procedure or adoption has been followed or not. We may only say that since such was neither pleaded, nor was brought to the notice of the Civil Court, the decree may have been passed, which would hardly of any reliance for examining the legality and validity of the order passed by the authorities below or the learned single Judge, as the case may be. The reliance placed upon the decision of this Court in the case of L.R.s of Popat Khima Ramani v. Collector, Rajkot (supra) is also ill-founded inasmuch as it was a case for revenue entry, which confers not title. Further, in the facts of that case the ‘will’ was a registered ‘will’ and there was already existence of declaration of the Civil Court, which is lacking in the present case, if the matter is considered on the appointed date provided by the statute. Hence, the decision is of no help to the learned Counsel for the petitioner.
13. In view of the aforesaid, we are in agreement with the view taken by the learned Single Judge and no case is found for interference. Hence, the appeal is meritless so far as it relates to the challenging to the legality and validity of the order dated 23.2.2010 passed in the main SCA No. 9807 of 1992.
14. In another LPA, challenging the order passed by the learned Single Judge dated 31.8.2001, the learned Single Judge has taken the basis of the order passed in the main SCA No. 9807 of 1992 dated 23.2.2001 on the aspects of adoption having not been valid.
15. In view of the reasons recorded by us herein above we find that the order of the learned Single Judge does not call for interference, and if the second order is also on that basis, we find that the same would also not call for any interference, more particularly when the view taken by the learned Single Judge on the aspect of of adoption does not call for interference. Hence, the said appeal also can be said as meritless.
16. In view of the above, both the appeals fail. Hence, dismissed. No order as to costs.
17. After the pronouncement of the order, the learned Counsel for the appellants press that the status-quo be continued for some time, so as to enable his clients to approach higher forum.
18. Considering the facts and circumstances, the status-quo shall be continued for a period of six weeks from today.